Haley Brown v. RK Hall Construction, LTD., RKH Capital, LLC, and Stacy Lyon D/B/A Lyon Barricade & Construction

ACCEPTED 06-15-00072-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 10/5/2015 3:15:41 PM DEBBIE AUTREY CLERK

No. 06-15-00072-CV

IN THE SIXTH DISTRICT COURT OF APPEALS FILED IN AT TEXARKANA, TEXAS 6th COURT OF APPEALS TEXARKANA, TEXAS HALEY BROWN, 10/5/2015 3:15:41 PM Petitioner/Appellant,DEBBIE AUTREY Clerk v.

R.K. HALL CONSTRUCTION, LTD., RKH CAPITAL, LLC AND STACY LYON D/B/A LYON BARRICADE & CONSTRUCTION. Respondents/Appellees.

Appealed from the 62nd Judicial District Court, Lamar County, Texas, The Honorable Will Biard, Presiding

APPELLEES/RESPONDENTS’ RESPONSE TO PETITION FOR INTERLOCUTORY APPEAL

Greg K. Winslett (Lead Counsel) Brett L. Myers (Lead Counsel) Texas State Bar No. 21781900 State Bar No. 00788101 W. Edward Carlton Blair M. Partlow Texas State Bar No. 03820050 State Bar No. 24013299 Marcie L. Schout FOX ROTHSCHILD, LLP Texas State Bar No. 24027960 Two Lincoln Tower QUILLING, SELANDER, LOWNDS, 5420 LBJ Freeway, Suite 1200 WINSLETT & MOSER, P.C. Dallas, Texas 75240 2001 Bryan Street, Suite 1800 (972) 991-0889 (Telephone) Dallas, Texas 75201 (972) 404-0516 (Facsimile) (214) 871-2100 (Telephone) ATTORNEYS FOR (214) 871-2111 (Facsimile) RESPONDENTS/APPELLEES gwinslett@qslwm.com R.K. HALL CONSTRUCTION, ecarlton@qslwm.com LTD. AND RKH CAPITAL, LLC mschout@qslwm.com ATTORNEYS FOR RESPONDENT/APPELLEE, STACY LYON D/B/A LYON BARRICADE & CONSTRUCTION

IDENTITY OF PARTIES AND COUNSEL

Petitioner/Appellant: Petitioner/Appellant’s Counsel: Haley Brown Kevin W. Vice Dale H. Henley Mayo, Mendolia &Vice 5368 State Hwy. 276 West Royse City, Texas 75189 Fax: 469-402-0461

Respondents/Appellees: Respondents’/Appellees’ Counsel: R.K. Hall Construction, Ltd. Brett L. Myers RKH Capital LLC Blair M. Partlow Fox Rothschild, LLP Two Lincoln Tower 5420 LBJ Freeway, Suite 1200 Dallas, Texas 75240 Fax: 972-404-0516

Stacy Lyon d/b/a Greg K. Winslett Lyon Barricade & Construction W. Edward Carlton Marcie L. Schout Quilling, Selander, Lownds, Winslett & Moser, P.C. 2001 Bryan Street, Suite 1800 Dallas, Texas 75201 Fax: 214-871-2111

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TABLE OF CONTENTS

Page Identity of Parties and Counsel ...................................................................................i Table of Contents ...................................................................................................... ii

Index of Authorities ................................................................................................. iii Issues Presented for Review .....................................................................................iv Statement of Facts ......................................................................................................1

Argument and Authorities..........................................................................................2 I. The petition for interlocutory appeal has been rendered moot because a final judgment has been entered as to RK Hall and Lyon. ........................... 2

II. The requirements of Texas Rule of Civil Procedure 168 and Texas Rule of Appellate Procedure 28.3 have not been met and accordingly an interlocutory appeal is not permitted. ......................................................... 3

III. Even if the requirements of Rule 168 and Rule 28 had been met, an interlocutory appeal is not proper because the summary judgment is not limited to a controlling issue of law and an interlocutory appeal will not advance the ultimate termination of the litigation. ............................ 5

Prayer .........................................................................................................................6

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INDEX OF AUTHORITIES

Page

CASES Heinrich v. Strasburger & Price, L.L.P., 01-15-00473-CV, 2015 WL 5626507 (Tex. App.—Houston [1st Dist.] Sept. 24, 2015, no. pet. h.) .....................................................................4

Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2009) ...........................................................................3 In re Estate of Fisher, 421 S.W.3d 682 (Tex. App.—Texarkana 2014, no pet.) ....................... 3, 5, 6 Long v. State, 03-12-00437-CV, 2012 WL 3055510 (Tex. App.—Austin July 25, 2012, no pet.) .............................................................................................4 Richardson v. Kays, No. 02–03–241–CV, 2003 WL 22457054 (Tex. App.—Fort Worth Oct. 30, 2003, no pet.) ..........................................................................5

RULES TEX. R. APP. P. 28.3(e)(4) ................................................................................. 3, 4, 5 TEX. R. CIV. P. 168 ............................................................................................ 3, 4, 5

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ISSUES PRESENTED FOR REVIEW 1. Has the request for an interlocutory appeal been rendered moot by the trial court’s granting of a severance, which permitted the summary judgment in favor of the defendants to become a final judgment which is subject to traditional appeal?

2. Should the petition for interlocutory appeal be denied where the underlying order does not comply with the requirements of Texas Rule of Civil Procedure 168 and the petition does not comply with the requirements of Texas Rule of Appellate Procedure 28?

3. Should the petition for interlocutory appeal be denied where it will not materially advance the ultimate termination of the litigation and will not result in judicial efficiency where interlocutory appeal will not allow consideration of all summary judgment grounds presented to the trial court?

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STATEMENT OF FACTS The Texas Department of Transportation (“TxDOT”) entered into a contract

with RK Hall Construction, Ltd. (“RK Hall”) for repair and construction on a portion of US Highway 82 located in Lamar County, Texas. RK Hall entered into a subcontract with Stacy Lyon d/b/a Lyon Barricade & Construction (“Lyon”) whereby Lyon would supply certain traffic control devices in accordance with the traffic control plan designed by TxDOT for this project.

On March 16, 2012, Haley Brown (“Brown”) had an accident while driving a vehicle through the project’s construction zone. Brown filed suit against TxDOT, RK Hall and Lyon asserting premises liability and negligence theories.

Both RK Hall and Lyon filed motions for summary judgment arguing (1) Brown’s claims were barred because they had immunity under section 97.002 of the Texas Civil Practice and Remedies Code, (2) Brown had no evidence of an unreasonable risk of harm, and (3) Brown had no evidence that they had actual knowledge of an unreasonable risk of harm. In addition, RK Hall argued it was entitled to summary judgment because (1) there was a lack of proximate cause, and (2) there was no evidence Brown was a licensee.

Following a hearing on the motions for summary judgment, the trial court indicated in an email that it was granting both the traditional and no evidence motions for summary judgment and further indicated that it would grant Brown the *2 ability to pursue an interlocutory appeal of these rulings. On August 27, 2015, the trial court entered an order consistent with this email, entering a take nothing judgment on the claims asserted against RK Hall and Lyon. The order did not constitute a final judgment because Brown’s claims against TxDOT remained pending.

On September 14, 2015, RKH and Lyon filed a motion for severance, seeking to have the claims against them severed so that the take nothing judgment as to the claims against them could become final.

On September 17, 2015, the trial court held a hearing on a motion for summary judgment filed by TxDOT. The trial court determined that fact issues remained as to the claims against TxDOT and denied the motion for summary judgment. However, the trial court also granted the motion to sever filed by RK Hall and Lyon and severed all claims asserted by Brown against them into a new cause number such that the judgment as to them is final.

ARGUMENT AND AUTHORITIES

I. The petition for interlocutory appeal has been rendered moot because a final judgment has been entered as to RK Hall and Lyon. There is no reason for this Court to grant a petition for interlocutory appeal

where the trial court has entered a final judgment as to the claims against RK Hall and Lyon and this matter is ripe for a traditional appeal. On September 17, 2015, the trial court severed all claims against RK Hall and Lyon into a separate suit. As *3 a result, the summary judgment granted to RK Hall and Lyon is a final judgment. Because there is a final judgment, Brown is free to file a notice of appeal under Texas Rule of Appellate Procedure 25.1.

Nothing about requiring a traditional appeal will limit the arguments Brown can make on appeal. The failure to pursue a permissible interlocutory appeal does not prevent a party from raising in a traditional appeal following final judgment the issue that could have been raised in an interlocutory appeal. Hernandez v. Ebrom, 289 S.W.3d 316, 319 (Tex. 2009). Accordingly, even if Brown had not filed a petition for interlocutory appeal, she would have been permitted to attack all grounds which could potentially support the summary judgment, even those that could have been considered in an interlocutory appeal. Because a traditional appeal is available to Brown, and there is no prejudice in requiring her to pursue a traditional appeal instead of an interlocutory appeal, Brown’s petition for interlocutory appeal is moot and should be denied.

II. The requirements of Texas Rule of Civil Procedure 168 and Texas Rule of Appellate Procedure 28.3 have not been met and accordingly an interlocutory appeal is not permitted. Statutes permitting interlocutory appeal are strictly construed. In re Estate of

Fisher, 421 S.W.3d 682, 685 (Tex. App.—Texarkana 2014, no pet.). Where the order permitting an interlocutory appeal under section 51.014(d) does not comply with the requirements of Texas Rule of Civil Procedure 168, the appellate Court *4 lacks jurisdiction to consider the petition for interlocutory appeal. Heinrich v. Strasburger & Price, L.L.P., 01-15-00473-CV, 2015 WL 5626507, at *1 (Tex. App.—Houston [1st Dist.] Sept. 24, 2015, no. pet. h.).

Rule 168 requires that the order granting permission to seek an interlocutory appeal “must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.” TEX. R. CIV. P. 168. Where an order merely grants permission to seek an interlocutory appeal, without specifying the controlling question of law at issue, the petition for interlocutory appeal should be denied. Long v. State, 03-12-00437-CV, 2012 WL 3055510, at *2 (Tex. App.—Austin July 25, 2012, no pet.). Here, the order permitting the interlocutory appeal does not satisfy either condition of Rule 168, 1 and accordingly, the Court does not have jurisdiction to grant the petition for interlocutory appeal.

In addition, the Texas Rules of Appellate Procedure require the petition for permissive appeal to “argue clearly and concisely why the order to be appealed involved a controlling question of law as to which there is a substantial ground for difference of opinion.” TEX. R. APP. P. 28.3(e)(4). Applications for permissive

1 At a hearing on October 2, 2015, the trial court denied a motion seeking to modify the August 27, 2015 summary judgment order, stating that there was a final judgment, Brown can appeal, and the trial court saw no reason to modify the summary judgment order.

appeal have been denied where the application did “not mention, discuss, or analyze why the issue ... involves a controlling question of law as to which there is a substantial ground for difference of opinion.” Richardson v. Kays, No. 02–03– 241–CV, 2003 WL 22457054, at *2 (Tex. App.—Fort Worth Oct. 30, 2003, no pet.); see also In re Estate of Fisher, 421 S.W.3d 682, 685 (Tex. App.—Texarkana 2014, no pet.). Because Brown has not met the standard of Rule 28.3(e)(4), the application for permissive appeal should be denied.

III. Even if the requirements of Rule 168 and Rule 28 had been met, an interlocutory appeal is not proper because the summary judgment is not limited to a controlling issue of law and an interlocutory appeal will not advance the ultimate termination of the litigation. This Court has noted that the interlocutory appeal allowed under section

51.014(d) exists to promote judicial efficiency. In re Estate of Fisher, 421 S.W.3d 682, 685 (Tex. App.—Texarkana 2014, no pet.). Here, that goal of judicial efficiency is better served by denying the interlocutory appeal and permitting a traditional appeal from the now final judgment.

The summary judgment was premised in part on a controlling question of law pertaining to the application of the immunity provisions contained in section 97.002 of the Texas Civil Practice and Remedies Code. However, the summary judgment motions also raised no evidence and traditional summary judgment grounds based on the lack of evidence regarding certain elements of Brown’s causes of action. These additional grounds could not be considered in the context *6 of an interlocutory appeal because a finding based on a no evidence point involves a controlling fact issue, not a controlling question of law. Fisher, 421 S.W.3d at 685. For example, in Fisher, this Court denied a petition for interlocutory appeal where the trial court’s ruling involved a finding that there was no evidence of undue influence at the time of the execution of a will. Id.

If an interlocutory appeal were permitted here, only one of the multiple summary judgment grounds could be considered. If the Court were to find that ground did not support the summary judgment, that would not result in the termination of this litigation because a traditional appeal would then be required to consider the other summary judgment grounds. Such an approach, especially where a final judgment has been entered by the trial court as to the claims against RK Hall and Lyon, would not lead to judicial efficiency. Instead, it would result in the duplication of appeals. The better approach is to deny the petition for interlocutory appeal and permit the traditional appeal from the final judgment to proceed.

PRAYER WHEREFORE, PREMISES CONSIDERED, Respondents/Appellees RK

Hall Construction, Ltd. and Stacy Lyon d/b/a Lyon Barricade & Construction pray that the petition for interlocutory appeal be denied. Respectfully submitted,

/s/ Brett L. Myers Brett L. Myers (Lead counsel) State Bar No. 00788101 Blair M. Partlow State Bar No. 24013299 FOX ROTHSCHILD, LLP Two Lincoln Tower 5420 LBJ Freeway, Suite 1200 Dallas, Texas 75240 (972) 991-0889 (Telephone) (972) 404-0516 (Facsimile)

ATTORNEYS FOR RESPONDENTS/ APPELLEES R.K. HALL CONSTRUCTION, LTD.

/s/ Greg K. Winslett Greg K. Winslett (Lead Counsel) Texas State Bar No. 21781900 W. Edward Carlton Texas State Bar No. 03820050 Marcie L. Schout Texas State Bar No. 24027960 QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C. 2001 Bryan Street, Suite 1800 Dallas, Texas 75201 (214) 871-2100 (Telephone) (214) 871-2111 (Facsimile) gwinslett@qslwm.com ecarlton@qslwm.com mschout@qslwm.com

ATTORNEYS FOR RESPONDENT/APPELLEE, STACY LYON D/B/A LYON BARRICADE & CONSTRUCTION

CERTIFICATE OF SERVICE On October 5, 2015, I served a copy of the foregoing pleading by electronic service, upon the following:

Kevin W. Vice Brett L. Myers Dale H. Henley Blair Partlow Mayo, Mendolia &Vice Fox Rothschild, LLP 5368 State Hwy. 276 West Two Lincoln Tower Royse City, Texas 75189 5420 LBJ Freeway, Suite 1200 kvice@mmvllp.com Dallas, Texas 75240 dhenley@mmvllp.com bmyers@foxrothschild.com bpartlow@foxrothschild.com

/s/ Greg K. Winslett Greg K. Winslett / W. Edward Carlton

CERTIFICATE OF COMPLIANCE I certify that this document was produced on a computer using Microsoft Word and contains 1,467 words, as determined by the computer software’s word- count function.

/s/ Greg K. Winslett Greg K. Winslett